Andrew L.

Schlafly
Attorney at Law
939 Old Chester Rd.
Far Hills, NJ 07931
(908) 719-8608
(908) 934-9207 (fax)
aschlafly@aol.com

November 22, 2010

The Supreme Court of North Dakota

State Capitol
Bismarck, ND 58505

Re: RECALLND v. Alvin Jaeger, Secretary of State, Case No. 20100228

Dear Your Honors,

Pursuant to N.D.R.App.P. 28(k), Petitioner RECALLND hereby advises this

Court of an appellate decision recently rendered in a case expressly cited at P2 (p.
1), P11 (pp. 5-6) and P24 (p. 12) of RECALLND’s brief. Specifically, the New
Jersey Supreme Court recently issued a divided 4-2 decision against the U.S.
constitutionality of recalling U.S. Senators, The Committee to Recall Robert
Menendez v. Wells (A-86-09, Nov. 18, 2010) (particularly Part IV).1

The lengthy majority opinion and dissent include statements relevant to

RECALLND’s brief. Concerning the historical record discussed by RECALLND
at P42 (p. 21), the dissent confirmed that:
nowhere in [the majority’s] pile of information is there anything that
approaches the level of clarity on the question that the majority hopes to
prove. Nowhere in the lengthy recounting of the exchange of viewpoints that
inform any robust debate on a matter as important as the creation of a new
Constitution is there anything that suggests that silence in that document
equates with the extinction of a historically recognized right of the people.
On the contrary, the fundamental principles on which the nation was
founded, which are embodied in the Federal Constitution itself, which were
championed by the Founding Fathers we today revere, and which are infused

1 http://www.judiciary.state.nj.us/opinions/supreme/A86Menendez.pdf
 throughout the decisions of this Court and of the United States Supreme
Court, make manifest that the majority’s conclusion not only is
fundamentally flawed, but that it flies in the face of all we hold dear as
citizens of this proud nation.

(Dissent Slip op. at 27-28).

At P39-P41 (pp. 19-21) of its brief, RECALLND quotes the letter of George
Washington stating that the “power under the Constitution will always be in the
People … and whenever it is executed contrary to their Interest, or not agreeable to
their wishes, their Servants can, and undoubtedly will be, recalled.” The majority
described this letter as “ambiguous” and possibly referring only to reelection (Slip
op. at 43-44), and declared it to be less credible than advocacy by critics of the
Constitution. The dissent responded:

That George Washington would write his assurance that there remained the
right to recall in the Constitution then being proposed for ratification; that he
would write those words to one not only his nephew and his eventual heir,
but to one who was soon to play his own role in the ratification process,
hardly merits such derision from this Court.

(Dissent Slip op. at 47, citation omitted, emphasis added).

RECALLND argued with respect to the Seventeenth Amendment at P43 (p.

22), and this was addressed also:

The practice of instructions died out with the ratification of the Seventeenth
Amendment, but it is significant for the current debate to note that its
absence from the Constitution was not raised as an impediment to its
rather regular use by the States.

(Dissent Slip op. at 62, citation omitted, emphasis added). The majority opinion
completely ignored the North Dakota Constitution in its reference to “only
Wisconsin” as passing a law establishing the power to recall after the ratification of
the Seventeenth Amendment. (Slip op. at 50 n.7).

Oral argument here included a discussion of U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 799 (1995), and both the majority and dissenting opinions
2
addressed it:

Nor does U.S. Term Limits, relied upon by the majority, (slip op. at 64-65),
support the proposition that the Tenth Amendment could not have reserved
the recall power. The argument that the federal government did not exist
prior to the ratification of the United States Constitution, and that because
the Senate therefore did not previously exist, there was no recall power to be
reserved, requires a kind of parsing that ignores the earlier confederation
in its entirety. And as Justice Stevens commented, “the right to choose
representatives belongs not to the States, but to the people.” U.S. Term
Limits, 514 U.S. at 820-21. In the context of a government of limited
powers, if it was not delegated to some branch of the federal government,
and not expressly delegated anywhere else, it is reserved. Whether it was
reserved to the states, which would make sense in light of the fact that their
legislatures were authorized to elect Senators at the time, or to the people,
where it remained unused pending the restoration to them of the power to
elect through the Seventeenth Amendment, it did not simply vanish.

(Dissenting Slip op. at 52-53, citations omitted, emphasis added).

RECALLND’s brief discussed the scenario of conviction of a Senator post-

election (P48-53, pp. 24-26). The following passage is relevant to that issue:

[T]he majority would tell the citizenry of New Jersey that it cannot recall
one of its U.S. Senators even if he or she is indicted, convicted and
incarcerated but not impeached; in those circumstances, the majority would
conclude that the people of New Jersey have no means to avoid being
disenfranchised.

(Dissenting Slip op. at 62-63). With respect to Senators who defy the will of the
people post-election, also discussed at oral argument here, the following passage
comments on that:
In effect, the majority sees the Senate as an institution immune from
criticism, even of the most profound and fundamental kind; it sees not a part
of a federal system, but an elitist institution the members of which should
not have to be troubled by what the people they represent believe, save for

3
 the necessity of having to return and convince the people to vote them back
into office every six years.

(Id. at 63-64).

Respectfully submitted,

/s/ Andrew L. Schlafly

Andrew L. Schlafly
Counsel for Petitioner RECALLND

Local counsel of record: Jeffrey L. Sheets (ID # 05047), Heritage Place, 201 Main
St. S., Suite 201, Minot, ND 58701, 701-838-5333

cc: Solicitor General Douglas Bahr, dbahr@nd.gov

Attorney General Wayne Stenehjem, ndag@nd.gov